30 January 2008

The Australian newspaper reported in January 2008 that Telstra (the main Australian phone provider) fixed and/or waterproofed telephone cables with plastic bags (see link above).

That might explain why my ADSL 2+ connection to my local exchange 1,200 m away usually ran at about 1.2 Mb instead of the expected 18 Mb. It also might explain why it acted as a rain detector - every time it rained the connection dropped every few minutes, and I was lucky if I got 256 Kb. I used to be assigned a new IP address every hour or so on sunny days, and dozens of times per day if it rained.

My ISP was stuck in the hands of Telstra, who said it had checked the line and found no fault. After several episodes of Telstra saying that it was all good, I cancelled my otherwise excellent Internode account, and am now in the clutches of Optus Cable, which works flawlessly...

10 January 2008

The obligation to provide discovery has existed for many years, and it has taken on a new dimension with the advent of computer records. If you're not particularly technology aware then you may find yourself and your client missing discoverable documents, which may lead to some hot water. In Qualcomm v Broadcom (USDC, 05cv1958-B (BLM)) the court ordered sanctions against the plaintiff, as well as referring six of its lawyers to their Bar Association for failing to disclose some electronic documents that they came across during the proceedings.

The judgement referred to above was in relation to applications made after the substantive trial. The history was that a lawyer for Qualcomm was preparing depositions and searched for documents on a witness's laptop. He found some highly relevant emails that had not been discovered, and chose not to discover them. The firm also did not search certain email archives, and in those that were searched, they did not search using certain keywords (that were significant). The attorneys ended up apologising to the judge

"for not having discovered these documents sooner and for asserting positions that [they] would not have taken had [they] known of the existence of these documents."

A few months later Qualcomm searched the email archives of 21 employees and located more than 46,000 documents (300,000 pages), which had been requested but not produced in discovery. It kept searching and found even more documents ... The court ultimately drew very adverse inferences, awarded costs (unusual in the USA) of USD$8.5m, and made some very instructive comments:

"The Committee’s concerns are heightened in this age of electronic discovery when attorneys may not physically touch and read every document within the client’s custody and control. For the current “good faith” discovery system to function in the electronic age, attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents. Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search. Producing 1.2 million pages of marginally relevant documents while hiding 46,000 critically important ones does not constitute good faith and does not satisfy either the client’s or attorney’s discovery obligations."

Qualcomm's attorneys kept good records of which computers were searched, and what the search terms were. However, the court noted that several searches were conducted late in the proceedings and "the fact that Qualcomm did not perform these basic searches at any time before the completion of trial indicates that Qualcomm intentionally withheld the documents" (one of several adverse inferences drawn). Another adverse inference was

"Qualcomm’s claim that it inadvertently failed to find and produce these documents also is negated by the massive volume and direct relevance of the hidden documents."

The Court found

"it likely that... one or more of the retained lawyers chose not to look in the correct locations for the correct documents, to accept the unsubstantiated assurances of an important client that its search was sufficient, to ignore the warning signs that the document search and production were inadequate, not to press Qualcomm employees for the truth, and/or to encourage employees to provide the information (or lack of information) that Qualcomm needed to assert its non-participation argument and to succeed in this lawsuit."

In addition to the disciplinary referral, the Court ordered the lawyers involved to prepare (supervised by the Court) a lengthy document setting out a detailed analysis of why it all occurred and how it could have been prevented. It also noted that it did not impose a fine on them partially because their client may look to them for compensation.

While writing this column I had a meeting with another lawyer in my firm to discuss electronic discovery obligations in a new matter, and it took over an hour just to outline the important issues. Take care to either get educated, or consider retaining an expert to deal with electronic discovery.

06 January 2008

I recently wrote a discussion paper for the Executive team of my law firm on the utility of social networking sites for our business. It seems now that others would benefit from a similar (but much shorter and heavily summarised) paper aimed at a wider audience, so here it is...

I don't think that a law firm needs to worry about being involved in FaceBook, MySpace, Bebo, Orkut or other social networking sites. That's not to say that they shouldn't use them from time to time in limited circumstances, but basically they have no relevance to our business.

I say this for several reasons:

it's not an efficient use of marketing resources and budget

your firm may end up being associated with advertising and other material that is not complementary

unless your client base is youth with time on their hands you won't find clients there

the software is inefficient to use compared to email or even instant messaging

My recommendation is that you limit employee access to these sites in the same way you might limit access to, say, Hotmail or Yahoo! mail (whether by policies or software management).

While I know that there are some groups on FaceBook (for example) based on law firms, these are usually very uncomplementary, or there is no clear reason for their existence. One group based on an international law firm has over 800 members - and you can only join using an inhouse email address! It makes you wonder what they're saying in that group that they can't say internally... or perhaps the firm's IT resources are so lacking that the members have to go outside the firm. I trust those people realise they do not own the data, traffic, friends lists or anything else, and it may be retained by FaceBook indefinitely... I hope none of them go on to public office one day and find this material in the press!

About Me

Well known for my column Cyberspace in the Journal of the Law Society of New South Wales, I'm in private practice in a specialist technology & commercial law firm - Pym's Technology Lawyers. I've been in-house legal counsel at major enterprises:

Ash Street Partners

Pym's Technology Lawyers

Sydney Water Corporation (Australia's largest water utility), and

Technology & Commercial law team at the Australian Broadcasting Corporation (Australia's pre-eminent media organisation),